Bombay High Court
Concan Constructions Pvt. Ltd Thr ... vs The Mormugao Port Authority Formerly ... on 25 March, 2025
2025:BHC-GOA:576
2025:BHC-GOA:576 (20) WP 698 of 2023
Sonam
IN THE HIGH COURT OF BOMBAY AT GOA
WRIT PETITION NO. 698 OF 2023
1) M/s Concan Constructions Pvt. Ltd.,
Through its Managing Director,
Mr. Preetam Masurkar,
Aged 59 years,
Having its registered office at 201,
Raykar Manor, Kaikini Road,
Karwar, Karnataka 581301. ... Petitioner
Versus
1. The Mormugao Port Authority,
Formerly known as Mormugao Port Trust,
Through its Chairman,
With its office at Headland, Sada,
Vasco-Da-Gama, Goa. ...Respondents
Mr. Nigel Da Costa with Mr. Vishal Sawant, Advocates for
the Petitioner.
Mr. Yogesh V. Nadkarni with Mr. Nilay Naik, Advocate for
the Respondent.
CORAM : VALMIKI MENEZES, J.
DATED : 25TH MARCH, 2025.
ORAL JUDGMENT:
1. Heard learned Advocates for the parties.
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(20) WP 698 of 2023
2. Rule. Rule is made returnable forthwith; at the request of
and with the consent of learned Advocates for the parties, the
matter is finally heard and disposed of. Learned Advocate Mr.
Vishal Sawant waives service on behalf of Petitioner and
learned Advocate Mr. Nilay Naik waives service for the
Respondent.
3. This Writ Petition under Article 227 of the Constitution of
India impugns order dated 17.04.2023, passed by Civil Judge
Senior Division at Vasco Da Gama, rejecting the Petitioner's
Review application dated 29.01.2019, in CMA 05/2019/B. The
Review application was filed before the Civil Court in Special Civil
Suit No. 11/2011, (where the Petitioner is the original Plaintiff and
Respondent is the Defendant therein) to seek a review of Judgment
and Decree dated 21.12.2018, rejecting the Petitioner's claim in the
suit.
4. The rival claims of the parties arose from a Contract dated
25.02.2011, wherein the Petitioner was contracted to construct,
repair, and modify an underground water tank. The Contract came
to be terminated by the Respondent on 16.06.2011, whereas the
Petitioner filed Special Civil Suit No. 11/2011, wherein it sought a
Decree of declaration that the termination of the Contract by the
Respondent was illegal and void. The Petitioner claimed damages
arising from the wrongful termination of the contract.
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5. Following its notice for termination of the Contract on
16.06.2011, the Respondent filed Regular Civil Suit No. 106/2013,
in which in it claimed compensation of Rs. 4,04,379/-(Rupees Four
Lakhs Four Thousand Three Hundred and Seventy Nine only) with
interest thereon for non-completion of the contract within the
stipulated time. The trial in both these suits was consolidated, and
a common Judgment and Decree was passed by the Civil Court on
21.12.2018, in which Petitioner's Special Civil Suit No. 11/2011
was dismissed and the Respondent's Regular Civil Suit No.
106/2013 was decreed.
6. The Petitioner challenged this Decree insofar as it decreed
Regular Civil Suit No. 106/2013 in favour of the Respondent, by
filing a First Appeal bearing RCA No. 15/2019 before the District
Court at Margao, which by its Judgment and Decree dated
25.10.2021, set aside the decree passed in Regular Civil Suit No.
106/2013 and remanded the case back to the Civil Court for the
fresh deciding qua the claim in Regular Civil Suit No. 106/2013 of
the Respondent. The matter is pending disposal.
7. In the meanwhile, the Petitioner filed a Review application
on 29.01.2019(CMA No. 05/2019/B), seeking a review of
Judgment and Decree dated 21.12.2018 with respect to the
dismissal of its suit (Special Civil Suit No. 11/2011). This
application was dismissed by the impugned order dated 17.04.2023,
against which the present petition has been filed.
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8. Mr. Yogesh Nadkarni, learned Advocate appearing for the
Respondent raised a preliminary objection to the maintainability of
this petition. He contends that a Writ Petition against an order
rejecting an application for review of a Judgment and Decree was
not maintainable, since the grounds for review essentially would be
those, which are required to be raised in the challenge to the
Judgment and Decree by way of a First Appeal. He submits that in
the absence of any challenge to the Decree passed by the Trial Court
on 21.12.2018, insofar as it rejects the Petitioner's suit, the present
petition is not maintainable. He relied upon a Judgment of the
Supreme Court in Rahimlal Bathu and ors V/s Ashiyal Beevi,
reported in 2023 SCC OnLine SC 1226, to contend that where a
review is rejected on merits against the appealable Decree, the
remedy lies in filing of a First Appeal against the Decree. It submits
that neither a Revision application under Section 155 of Civil
Procedure Code, nor a Writ Petition under Article 227 of the
Constitution of India would lie.
9. Mr. Nigel Da Costa Frias, learned Advocate appearing for the
Petitioner submits that a Writ Petition would be maintainable since
the relief sought therein is actually for setting aside of the order
rejecting the review application; he contends that the Trial Court
has not decided, the review application on the grounds raised
therein. He submits that, had the Review Court addressed itself to
specific grounds raised in the application, i.e. documents by which
the Managing Director of the Petitioner was authorized to depose
on behalf of the Petitioner, the Review Court would have come to a
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different conclusion from the one arrived at in impugned order. He
submits that the High Court, in exercise of jurisdiction under Article
227 of the Constitution of India can always correct the impugned
order and remand the matter back to the Review Court to consider
the application afresh and after considering the documents,
authorizing the Petitioner's Managing Director to depose.
10. In Rahimal(supra), the Supreme Court has considered the
very same question that has arisen in the present petition i.e.
whether a Writ Petition or a Revision application is maintainable
against an order refusing review on merits when the original
Judgment and Decree has not been challenged and has been left
intact. In that Judgment, the Hon'ble Supreme Court has considered
the scope of a Revision application under Section 115 of Civil
Procedure Code which is akin to the supervisory jurisdiction Under
Article 227 of the Constitution of India and has further considered
the provisions of Order 47 Rule 1 of Civil Procedure Code read with
the provisions of Order 41 Rule 21 of Civil Procedure Code and has
held thus:
"25. What is clear from the above observations is, that
where the review is allowed and the decree/order under
review is reversed or modified, such an order shall then be
a composite order whereby the court not only vacates the
earlier decree or order but simultaneous with such vacation
of the earlier decree or order, passes another decree or
order or modifies the one made earlier. The decree so
vacated, reversed or modified is then the decree that is
effective for the purposes of a further appeal, if any,
maintainable under law. But where the review petition is
dismissed, there is no question of any merger and anyone
aggrieved by the decree or order of the Tribunal or Court
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shall have to challenge within the time stipulated by law,
the original decree and not the order dismissing the review
petition. Time taken by a party in diligently pursuing the
remedy by way of review may in appropriate cases be
excluded from consideration while condoning the delay in
the filing of the appeal, but such exclusion or condonation
would not imply that there is a merger of the original decree
and the order dismissing the review petition."
"26. Apart from above, there is another reason also for a
revisional court not to entertain a revision against an-
order-rejecting on merits an application for review of an
appealable decree, which is, if the revisional court sets
aside or modifies or alters a trial court's decree, the decree
of the trial court would merge in the one passed by the
revisional court. In consequence, the right of the party
aggrieved by the trial court's decree to file an appeal would
get affected. Further, there may be a case where a person is
aggrieved by a finding of the trial court on any issue, even
though the trial court's decree may be in its favour. In that
scenario, if there is an appeal by a party aggrieved by the
decree, that person would have a right to take an objection
against the adverse finding with the aid of the provisions of
Order XLI, Rule 22 of the CPC, but in the event of there
being no appeal against the decree, such a person would
lose its right to take an objection, under Order XLI, Rule 22
of the CPC, against that adverse finding."
"27. No doubt revisional powers may be available on
limited grounds, primarily to correct jurisdictional errors,
but still it is a part of the general appellate jurisdiction of
the High Court as a superior court. In Shankar
Ramchandra (supra), this Court observed:
"6. Now when the aid of the High Court is invoked on the
revisional side it is done because it is a superior court and
it can interfere for the purpose of rectifying the error of the
court below. Section 115 of the Code of Civil Procedure
circumscribes the limits of that jurisdiction but the
jurisdiction which is being exercised is a part of the general
appellate jurisdiction of the High Court as a superior court.
It is only one of the modes of exercising power conferred by
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the statute; basically and fundamentally it is the appellate
jurisdiction of the High Court which is being invoked and
exercised in a wider and larger sense. We do not, therefore,
consider that the principle of merger of orders of inferior
courts in those of superior Courts would be affected or
would become inapplicable by making a distinction
between a petition for revision and an appeal."
"28. In the instant case, the trial court, which had
jurisdiction to allow or dismiss the review application,
dismissed the review application on merits. If it had granted
the review, the aggrieved party would have had a right to
file an appeal under Order XLIII Rule 1(W) read with Order
XLVII Rule 7 of the CPC. And if it had allowed the review
and simultaneously altered/modified/reversed the decree,
the aggrieved party would have had a right to file an appeal
against the said decree. But, if the revisional court does the
same, as has been done by the High Court while passing the
impugned order, an anomalous situation would arise. The
decree passed by the trial court would stand modified by the
High Court. Therefore, if the defendant(s) against whom the
decree is passed were to challenge the same, they would be
at a disadvantage on account of the merger. Whereas, from
the stand point of the plaintiff-respondent, even if we
assume that the trial court's decree is inconsistent with its
finding on the validity of the gift in favour of Khaja
Mohideen, she can challenge the same in an appeal against
the decree even after rejection of the review application. In
the event of such an appeal by the plaintiff, the defendant(s),
even if they had themselves not filed an appeal against the
trial court's decree, would have a right to take objection to
the adverse finding(s) under Order XLI Rule 22 of the CPC.
However, if the revisional court's order is allowed to stand,
owing to modification of the decree by the revisional court,
to which in normal course an appeal would lie, the right of
an appeal to the aggrieved party would get seriously
prejudiced."
"29. For all the reasons above, we are of the considered
view that where an appealable decree has been passed in a
suit, no revision should be entertained under Section 115 of
the CPC against an order, rejecting on merits a review of
that decree. The proper remedy for the party whose
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application for review of an appealable decree has been
rejected on merits is to file an appeal against that decree
and if, in the meantime, the appeal is rendered barred by
time, the time spent in diligently pursuing the review
application can be condoned by the Court to which an
appeal is filed."
11. In the present case, the Judgment and Decree sought to be
reviewed has not been challenged independently by way of a First
Appeal. The Petitioner sought to challenge that part of the very
same Judgment that has decreed the suit of the Respondent i.e.
Regular Civil Suit 106/2013. In fact, in the present case, the
Petitioner has succeeded in the First Appeal, and the Judgment and
Decree have been set aside to the extent that the Respondent's suit
was decreed; the matter has now been remanded back to the Trial
Court for fresh consideration of the evidence on the record.
12. The ratio laid down by the Hon'ble Supreme Court in
Rahimal (supra), it would apply in all force to the facts of the
present case. The present petition would clearly not be
maintainable, since if the Review application were allowed, the
Respondent would have recourse to file an Appeal from Order
under Order 43 Rule 1(w) of the Civil Procedure Code. This means
that if the present Writ Petition were allowed and the Decree in
Special Civil Suit No. 11/2011 were set aside, the Respondent
would be losing an opportunity of challenging this Court's order
further in an Appeal. This is precisely what the Hon'ble Supreme
Court has allowed in Rahimlal (Supra).
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13. In that view of the matter, the present Writ Petition is
dismissed on the preliminary objection, as being not maintainable.
14. Needless to state, if permissible at law and subject to law of
limitation, it is open for the Petitioner to file a First Appeal to
challenge the Decree dated 21.12.2018, insofar as it dismisses
Special Civil Suit No. 11/2011 in a First Appeal and to raise in such
Appeal all such grounds raised in the Review application.
15. Rule stands discharged.
16. The Writ Petition is dismissed.
VALMIKI MENEZES, J.
25th March, 2025
